Calcutta High Court (Appellete Side)
Shri Dipak Kumar Das vs Md. Irshad Qamar & Ors on 26 September, 2018
Author: Biswajit Basu
Bench: Biswajit Basu
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54.SL,Ct.21
26.09.2018
AJ.
C.O. 2663 of 2017
Shri Dipak Kumar Das
-Vs-
Md. Irshad Qamar & Ors.
Mr. Upendray Roy,
Mr. Sunny Nandy.
... for the petitioner.
Mr. Imtiaz Ahmed,
Ms. Shaila Afrin.
....for the opposite party no. 1.
The revisional application under Article 227 of the Constitution of India
is at the instance of the plaintiff in a suit for declaration and injunction and it
is directed against three orders dated September 15, 2016, January 25, 2017
and June 12, 2017 passed by the learned Civil Judge (Junior Division), 1st
Additional Court, Alipore, South 24-Parganas in Title Suit No. 50 of 2015.
The defendant no. 2, in the suit, Saibal Chowdhury died on May 01,
2015. The plaintiff on July 05, 2016 filed an application under Order 22 Rule
4 of the Code of Civil Procedure thereby praying substitution of the legal heirs
and representatives of the said Saibal Chowdhury, namely, his widow Baishaki
Chowdhury, daughter Akansha Chowdhury and son Ankit Chowdhury in the
suit as defendants.
The learned trial Judge, by the order dated September 15, 2016,
dismissed the said application holding that the suit against the deceased
defendant no. 2, Saibal Chowdhury has already been abated by operation of
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law, therefore, no formal order for recording of abatement is needed. The
plaintiff thereafter filed an application for review of the said order, which was
dismissed by the learned trial Judge, by the order dated January 25, 2017.
The plaintiff thereafter filed an application under Order 1 Rule 10 read with
Section 151 of the Code praying, the said legal heirs and representatives of the
deceased no. 2, Saibal Chowdhury, be added as defendant nos. 2(a), 2(b) and
2(c) in the suit. The learned trial Judge dismissed the said application by the
order dated April 24, 2017.
Mr. Roy, learned advocate appearing on behalf of the plaintiff/petitioner
submits that the said Saibal Chowdhury, being a proforma defendant in the
suit, the suit cannot abate as against the said respondent on the failure of the
plaintiff to bring on record his legal heirs and representatives within the time stipulated under the law.
Mr. Ahmed, learned advocate appearing on behalf of the defendant/opposite party no. 1 submits that the suit property belongs to a debottar estate and the said defendant no. 2, Saibal Chowdhury was the surviving sebait of the said debottar estate and on his death the right to sue devolves upon the persons who, according to the deed of dedication, have inherited the office of sebaitship. He also submits that the office of sebaitship, according to the deed of dedication, is not heritable, but is restricted only to the male members of the family of the settlor. He concludes by submitting that the application for substitution of the legal heirs and representatives of the deceased defendant no. 2, Saibal Chowdhury is wholly misconceived. 3
Heard the learned advocates for the parties.
I find substance in the submission of Mr. Ahmed that since the office of sebaitship is not heritable on the death of the defendant no.2, the sebait Saibal Chowdhury, his legal heirs and representatives cannot be substituted in the suit as right to sue survives only upon the persons, who are entitled to succeed the office of the sebaitship in terms of the deed of dedication dated April 14, 1938.
In view of the discussion made above, this Court, although on different reason, does not find any illegality or infirmity in the orders under challenge in the present revisional application.
The revisional application being C.O. 2663 of 2017 is dismissed. No order for costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)